Roman v. City of Chicago

Appeal from the Circuit Court of Cook County; the Hon. James
S. Quinlan, Jr., Judge, presiding.

JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Defendant City of Chicago (city) appeals from a jury verdict awarding plaintiff Nereida Roman (Nereida) damages of $140,000 for injuries sustained as a result of city's negligence. On appeal, city contends that: (1) the trial court erred in directing a verdict for Nereida on the issue of city's negligence without at that time instructing the jury that proximate cause was a separate issue; (2) the trial court erred in tendering to the jury "in its entirety" Illinois Pattern Jury Instruction, Civil, No. 15.01 (2d ed. 1971) (hereinafter cited as IPI Civil 2d); (3) the damages awarded by the jury were based on speculative evidence and were excessive.

At trial, Nereida testified: On December 29, 1978, she was employed by Illinois Bell as a mail sorter earning a salary of $167.50 per week. At 6:30 a.m. she left for work, walking two blocks from her home to catch a bus at 56th and Halsted streets. Although she usually drove to work, Nereida had decided to take the bus because it had snowed the night before and there was snow on the ground. After waiting a short time for the bus at 56th Street, she walked on the east side of Halsted Street, north to 55th Street to wait for the bus there. Nereida walked in the area at the side of the sidewalk between the street lamp and the curb. She stepped into a hole. Her right leg went down into the hole, and her left leg was lying flat on the sidewalk. Her arms supported her on the sidewalk and kept her from falling further into the hole. Nereida felt "a bad pain" in her "left leg or ankle." She called out for help and a motorist stopped, helped her out of the hole and drove her home. Her family then drove her to Central Community Hospital in Chicago.

At the hospital, Nereida was examined, X-rayed and admitted. She saw only the doctor and "did not speak to any police officers." She remained in the hospital for seven or eight days. During that time her ankle was operated upon. A pin was put in her ankle and she was fitted with a "hard cast."

After leaving the hospital, Nereida remained at home until April 16, 1979, when she returned to work. While at home she was fitted by the doctor for a "walking cast." She returned to the doctor to have the cast removed. She was away from work for 15 weeks, and her hospital bill was $3,098. At the time of trial, her ankle still hurt on occasion and in humid or cold weather it would swell.

Mildred Roman, Nereida's sister, testified: She was 21 years old and lived with her mother and Nereida at the time of the accident. She took the "Halsted bus" to work each day. She stated that the sidewalks at the corner of 56th and Halsted were "in poor condition." She had noted four "coal holes" "without covers" north of 56th Street on the east side of Halsted on the day before Nereida's accident. She took pictures of these "coal holes" the day after the accident.

Dr. Allen Hirschtick, called by plaintiff, testified: He was an orthopedic surgeon whose practice at the time of trial "consisted of consulting work." On April 13, 1983, he had examined Nereida and studied her medical records. According to her records, she had broken her ankle five years earlier. Upon examining her legs and ankles, he observed a "very noticeable atrophy of the muscles of the left calf." He X-rayed the left leg.

Dr. Hirschtick testified that there were two fractures and a partial dislocation of the ankle; that the bone is "partly out of play" and there is evidence of "early arthritis in the ankle joints" as a result of the "damage to the joint cartilage when the fracture took place." This arthritis is "a result of the injury" and is "permanent." Because it is a weight-bearing joint, daily activities "will cause a progressive degenerative change of the joint cartilage. So the arthritis will gradually get worse." She'll "eventually need surgery," but not "for perhaps 10 years." If done now, the surgery would be "fusion" of the ankle, in which the bones would be joined together. They are "working on an artificial ankle" which "might" be ready within 10 years. The fusion operation today would cost $15,000 including hospital and surgical fees. "Either" operation would require a minimum convalescence time of "6 months."

On cross-examination, Dr. Hirschtick conceded that he had not seen Nereida's X rays taken at the time of her accident, although he had read the "x-ray report" contained in her hospital records. He stated that from the X rays he had taken it was not possible to "tell when the injuries occurred, except to say that they're not recent." He had examined Nereida on only one occasion, and she had a "normal gait" and did not walk with a limp. He believed it was "more than possible" that Nereida would need future surgery, "depending on the daily stress that the ankle is subjected to."

City called Officer Mario Silva of the Chicago police department as its sole witness. He had prepared an accident report on December 29, 1978, at Central Community Hospital. His report indicated that he interviewed Nereida Roman on that date and that she told him "she slipped on the ice and hurt her ankle."

At the close of the evidence, Nereida's attorney moved for a directed verdict with regard to city's negligence in leaving an uncovered "coal hole" on the sidewalk on December 29, 1978. The motion was granted. After the jury returned, the trial court interrupted plaintiff's closing argument and told plaintiff's counsel:

"I just want to interrupt you for a second. I forgot to do one thing. You want to inform the jury that the court has found, as a matter of law, that the city was negligent in allowing a coal hole to remain uncovered and did not barricade it or in some other manner warn pedestrians that it was there."

Counsel then resumed closing argument.

Following deliberations the jury returned a verdict of ...

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